Customary communities as 'peoples' and their customary tenure as 'culture': What we can do with the Endorois decision

Wilmien Wicomb; Henk Smith

Legal Resources Centre, Cape Town, South Africa

SUMMARY

The peoples' rights protected in the African Charter, and in particular the right to culture, development, natural resources and the emphasis on community self-determination and self-identification, potentially provide the basis for creative jurisprudence to protect rural communities and promote their participation in decision making and benefit from the development of their land. In the Endorois decision, the African Commission could have relied on domestic African jurisprudence to give new content to the participation rights of all rural communities living under customary law, and not just those that can prove their own indigeneity. The article deals with the notion of self-defining customary communities in Africa and the jurisprudence of the South African Constitutional Court on living customary law, being varying, localised systems of law observed by numerous communities. The African Charter does not explicitly recognise customary law, but the award of title in the case of the Endorois, the evidence of customary forms of tenure and the centrality of land and associated practices in the culture of the people, amount to such recognition. The article concludes with a note on the procedural aspect of participation in decision making. The consent standard for any limitation on the right to property, culture and development reflects respect for and recognition of customary law and culture. The customary law tenure rules of communities require community permission before outsiders could use and share in the community's property and resources.

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* BA, BA (Hons), MA (Stellenbosch); LLB (UNISA), LLM (Human Rights and Democratisation in Africa) (Pretoria); wilmien@lrc.org.za. The article is based on a paper presented at a conference entitled 'Thirty years of the African Charter on Human and Peoples' Rights: Looking forward while looking back', hosted by the African Commission on Human and Peoples' Rights and the Centre for Human Rights, University of Pretoria on 11 July 2011.
** BA LLB (Stellenbosch), LLM (Warwick); henk@lrc.org.za
1 P Alston 'Peoples' rights: Their rise and fall' in P Alston (ed) Peoples' rights (2001) 259 287,         [ Links ] quoted in R Murray & S Wheatley 'Groups and the African Charter on Human and Peoples' Rights' (2003) 25 Human Rights Quarterly 236.         [ Links ]
2 Social and Economic Rights Action Centre (SERAC) & Another v Nigeria (2001) AHRLR 60 (ACHPR 2001).
3 Murray & Wheatly (n 1 above) 226.
4 Centre for Minority Rights Development & Others v Kenya (2009) AHRLR 75 (ACHPR 2009) (Endorois case).
5 The terms 'customary', as 'traditional', and 'indigenous' are contentious. We use the term 'customary community' in the article to refer to communities who regulate their lives, and in particular their tenure rights, in terms of customary law. This term is used to denote a far broader group of people than the narrow definition of 'indigenous' or 'tribal' peoples, a distinction that will become clear later in the article.
6 We understand the term 'customary tenure rights' to include the informal rights exercised although not registered or formally acknowledged by the state law system. It may include original ownership or aboriginal title rights where such have not been explicitly extinguished by state law.
7 ILO Resolution 169; C169 Indigenous and Tribal Peoples Convention, 1989 Convention concerning Indigenous and Tribal Peoples in Independent Countries; 1 September 2011, Human Rights Council: Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya: Extractive industries operating within or near indigenous territories.
8 HWO Okoth-Ogendo 'The nature of land rights under indigenous law in Africa' in A Claassens & B Cousins (eds) Land, power and custom (2008) 95.         [ Links ]
9 Okoth-Ogendo (n 8 above) 99.
10 T Bennett A sourcebook of African customary law of Southern Africa (1991).         [ Links ]
11 Eg, in South Africa, the Bantu Authorities Act of 1951 entrenched 'tribal' boundaries and gave statutory powers to certain chiefs. See also P Delius 'Contested terrain: Land rights and chiefly power in historical perspective' in Claassens & Cousins (n 8 above) 211.         [ Links ] Chiefs were recognised and incorporated as the lowest rung of the administrative system. The Native Administration Act 38 of 1927 set out to define a distinct administrative and legal domain for Africans drawing on a highly authoritarian understanding of chiefly rule as a model. Echoing the Natal system, the Act opened with the declaration that the 'Governor General shall be the supreme chief of all the natives in the provinces of Natal, Transvaal and the Orange Free state'. This supreme chief was given a range of powers to which even the most powerful ruler in pre-colonial South Africa could never have aspired, and it permitted him to devolve these vast powers to any administrative official. It also bestowed on the supreme chief the right to rule over all Africans by the simple device of issuing proclamations. Under the Act, the Governor-General could recognise or appoint any person as a chief or a headman in charge of a tribe or location, could depose any chief or headman and was authorised to define their powers, duties and privileges.
12 For more, see Claassens & Cousins (n 8 above).
13 S Mnisi '[Post]-colonial culture and its influence on the South African legal system -Exploring the relationship between living customary law and state law' unpublished PhD thesis, Oxford University, 2007.         [ Links ]
14 For commentary on this post-independence phenomenon in South Africa, see Claas-sens & Cousins (n 8 above) and A Claassens 'The resurgence of tribal levies in the context of recent traditional leadership laws in South Africa' paper delivered at Wits University School of Historical Studies conference 'Let's talk about the Bantustans' (2010).
15 RS Knight 'Statutory recognition of customary land rights in Africa: An investigation into best practices for lawmaking and implementation' (2010) vi.         [ Links ]
16 There are other reasons for advancing this argument which extend beyond the focus of this article. See W Wicomb 'Law as a complex system: Facilitating meaningful engagement between state law and living customary law' paper presented at the IASC International Conference on the Complex Commons, Hyderabad, India, January 2011.         [ Links ]
17 See eg B Cousins 'Characterising "communal tenure": Nested systems and flexible boundaries' in Claassens & Cousins (n 8 above) 119.
18 See JL Comaroff & S Roberts Rules and processes: The cultural logic of dispute in an African context (1981).         [ Links ]
19 This feature presents interesting comparisons with international law: It could be argued that a human rights document such as the African Charter is also designed to anticipate outcomes-based interpretations in order to effectively protect the rights of people.
20 J Quan 'Land tenure, economic growth and poverty in sub-Saharan Africa' in C Toul-min & J Quan (eds) Evolving land rights, policy and tenure in Africa (2000) 31.         [ Links ]
21 Elsewhere we have argued that the interrelation and interaction between the state law and customary law systems depend on the recognition of both the identity and difference of the two systems. In the latter case, the fundamental differences between the two systems will only be acknowledged properly if they are not understood in terms of the other, but in their difference - thus, avoiding the trap of formulating customary law in terms of state/conventional private property law, thereby distorting the nature of the former (or, indeed, vice versa). At the same time, however, we must be able to acknowledge the identity or similarities of the systems in order to facilitate engagement. An over-emphasis on difference has an equally impotent result: In a rural community, eg, where living customary law is at the order of the day, state law is often so foreign to their particular social and cultural contexts that it is simply ignored. See H Smith & W Wicomb 'Towards customary legal empowerment' paper presented at SAIFAC Conference on Transjudicialism, Constitutional Court, 4 October 2010.
22 Knight (n 15 above) v.
23 See eg Bhe & Others v Magistrate, Khayelitsha & Others; Shibi v Sithole & Others 2005 1 SA 580 (CC); Ephrahim v Pastory and Kaizingele [1990] LRC (Const) 757 (HC of Tanzania). The handful community-based claims to property in Tanzania and Kenya have seen communities rely on the protection of indigenous peoples' rights, with limited success. See Kemai & Others v Attorney-General & Others (2005) AHRLR 118 (KeHC 2000); Sesana & Others v Attorney-General (2006) AHRLR 183 (BwHC 2006).
24 Customary law has been recognised as a source of South African law by the Constitutional Court in a number of cases. See S v Makwanyane & Another 1995 3 SA 391 (CC) paras 307-308; Bhe (n 23 above) para 45; Gumede v President of the Republic of South Africa & Others 2009 3 SA 152 (CC) para 20; Alexkor Ltd v The Richtersveld Community 2004 5 SA 460 (CC) para 52; Shilubana & Others v Nwamitwa 2009 2 SA 66 (CC) para 45; Tongoane & Others v Minister for Agriculture and Land Affairs & Others [2010] ZACC 10; 2010 6 SA 214; 2010 8 BCLR 741 (CC).
25 Sec 39(3).
26 Sec 39(2) provides: 'When developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.' Sec 8(3) requires that, in the horizontal application of the Bill of Rights affecting natural and juristic persons, the court must apply or develop the common law to give effect to the relevant right to the extent that statute law does not address the matter. Sec 173 refers to the inherent power of the higher courts to develop the common law. We would argue that the development of both customary law and the common law is implied in the wording of secs 8 and 173. See also DM Davis & K Klare 'Transformative constitutionalism and the common and customary law' (2010) 26 South African journal on Human Rights 403 fn 76. Further, sec 39(2) should be interpreted to require that whenever any court or even customary law dispute resolution mechanism, such as a community or 'tribal court', engages with, interprets, applies or develops customary law, it must implement and promote the rights in the Bill of Rights. It requires more than merely taking into account the political, social and economic human rights contained in the Constitution. See also Davis & Klare (above) 425-431.
27 This principle does give rise to problems of proving custom. However, the Court has developed a number of principles in this regard. It held in Shilubana (n 24 above): 'An enquiry into the position under customary law will therefore invariably involve a consideration of the past practice of the community. Such a consideration also focuses the enquiry on customary law in its own setting rather than in terms of the common law paradigm, in line with the approach set out in Bhe. Equally, as this court noted in Richtersveld, courts embarking on this leg of the enquiry must be cautious of historical records, because of the distorting tendency of older authorities to view customary law through legal conceptions foreign to it.'
28 Bennett (n 10 above) 138.
29 Mnisi (n 13 above). In Alexkor (n 24 above), the Court noted: 'Bennett points out that, although customary law is supposed to develop spontaneously in a given rural community, during the colonial and apartheid era it became alienated from its community origins. The result was that the term 'customary law' emerged with three quite different meanings: the official body of law employed in the courts and by the administration (which, he points out, diverges most markedly from actual social practice); the law used by academics for teaching purposes; and the law actually lived by the people.'
30 Alexkor Ltd and the Republic of South Africa v The Richtersveld Community & Others (CCT19/03) [2003] ZACC 18; 2004 5 SA 460 (CC); 2003 12 BCLR 1301 (CC) (14 October 2003) para 62. The court's preference for the term 'indigenous' law rather than 'customary' law appears to be based on the use of 'indigenous' in schedule 4 of the Constitution.
31 Richtersveld Community & Others v Alexkor Ltd & Another 2003 6 BCLR 583 (SCA) para 18: 'The Richtersveld people shared the same culture, including the same language, religion, social and political structures, customs and lifestyle derived from their Khoi-Nama forefathers. One of the components of the culture of the Richtersveld people was the customary rules relating to their entitlement to and use and occupation of their land. The primary rule was that the land belonged to the Richtersveld community as a whole and that all its people were entitled to the reasonable occupation and use of all land held in common by them and its resources.'
32 Amodu Tijani v The Secretary, Southern Nigeria (100) (1921) 2 AC 199 403-404. The case involved a claim for compensation by an African chief for lands taken by the Crown for public purposes under a local ordinance in Southern Nigeria, a colony acquired by the cession of Lagos in 1861. In issue was the amount of compensation to be paid, which depended on the nature of the appellant's interest in the lands and his relationship with the community that had occupied and used it. Viscount Haldane dealt with the nature of the land tenure under local customary law and the effect of the cession.
33 Tongoane (n 24 above).
34 Tongoane (n 24 above) para 45.
35 The African Charter on Human and Peoples' Rights, also called the 'Banjul Charter', was adopted on 27 June 1981 and came into force on 21 October 1986. It has been ratified by all African countries except Morocco.
36 Murray & Wheatley (n 1 above) 213-216.
37 Endorois (n 4 above) paras 19-24.
38 Murray & Wheatley (n 1 above), citing R Kiwanuka 'The meaning of "people" in the African Charter on Human and Peoples' Rights' (1988) 82 American Journal of International Law 80 82 and E Bello 'The African Charter on Human and Peoples' Rights' (1985-86) 194 Hague Recueil 13 24.         [ Links ]         [ Links ]
39 SERAC (n 2 above).
40 Murray & Wheatley (n 1 above) 231.
41 Endorois (n 4 above) para 147.
42 Endorois (n 4 above) para 149.
43 Our emphasis.
44 This document was released for comment in 2008 by the African Commission and has not been adopted as of June 2011.
45 General Recommendation 23 of the Committee.
46 Endorois (n 4 above) para 78. In para 113, the community argues that the recognition given Kenyan law is limited and 'provides in reality only minimal rights'.
47 Endorois (n 4 above) para 87.
48 Endorois (n 4 above) para 90.
49 Endorois (n 4 above) para 94.
50 Endorois (n 4 above) para 188.
51 Endorois (n 4 above) paras 190-191.
52 This distinction was made in the ILO 169 Convention, the first significant international instrument protecting indigenous peoples' rights. Art 1 provides: 'This Convention applies to: (a) tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations; (b) peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.'
53 Inter-American Court of Human Rights, Case of the Saramaka People v Suriname (judgment of 28 November 2007) para 86.
54 Endorois (n 4 above) para 204.
55 Endorois (n 4 above) para 145.
56 Endorois (n 4 above) para 146.
57 Endorois (n 4 above) para 149.
58 K Lehman 'Aboriginal title, indigenous rights and the right to culture' (2004) 20 South African journal on Human Rights 1.         [ Links ] She questions whether the doctrine of aboriginal title really is of value for South African communities.
59 R v Van der Peet (1996) 2 SCR 507 45.
60 The court must look in identifying aboriginal rights to what makes those societies distinctive, gives it a core identity, and a people's culture being one that 'truly made the society what it was'. This is implied by para 56 in Van der Peet (n 59 above).
61 Delgamuukw v British Columbia (1997) 153 DLR (4th) 193.
62 R v Sappier; R v Cray 2006 SCC 54, [2006] 2 SCR 686 para 45.
63 Sappier (n 62 above) para 33. 'Culture' refers to the 'way of life of particular aboriginal community, including their means of survival, their socialisation methods, their legal systems, and, potentially, their trading habits' (para 45).
64 Ahousaht Indian Band and Nation v Canada (Attorney-General) 2009 BCSC 1494; Ahousaht Indian Band and Nation v Canada (Attorney-General) 2011 BCCA 237.
65 Communication 547/1993, CCPR/C/70/D/547/1993 (2000) para 9.7; General Comment 23: The Rights of Minorities (art 27) (50th session, 1994), CCPR/C/21Rev 1/Add 5, 4 August 1994, paras 1 & 3.2.
66 The UN Human Rights Committee interprets the right to culture to include 'economic and social activities which are part of the culture of a community' to which indigenous peoples belong. Chief Bernard Ominayak and the Lubicon Lake Band v Canada Communication 167/1984, UN Doc CCPR/C/38/D/167/1984 (1990) para 32.2.
67 In para 249 it is stressed that the right to culture in the African Charter does not have a claw-back clause.
68 The power of cultural rights are illustrated when the Commission finds that any infringement of the right amounting to the denial of access to heritage sites and resources for their livelihoods, and destroying the community's way of life, cannot be rationally justifiable and proportionate to any conservation aim.
69 Richtersveld Community & Others v Alexkor Ltd & Another 2001 3 SA 1293 (LCC) para 65. The circumstances that the Richtersveld people, prior to being excluded from the subject land, occupied it and regarded it as their own, is evidenced by the fact that outsiders required permission before they could use the land (a requirement which they were not always able to enforce), and that grazing fees were extracted from outsiders whenever possible. The Richtersveld SCA judgment (in para 18) similarly emphasises the central rule of permission of access to outsiders: 'All members of the community had a sense of legitimate access to the land to the exclusion of all other people. Non-members had no such rights and had to obtain permission to use the land for which they sometimes had to pay ... The captain and his "raad" enforced the rules relating to the use of the communal land and gave permission to newcomers to join the community or to use the land.' In Delgamuukw (n 61 above) paras 157 and 158, the Supreme Court considers aboriginal trespass laws and aboriginal treaty law providing for 'permission . granted to other aboriginal groups to use or reside even temporarily on land'.
70 Delgamuukw (n 61 above) para 129: lands held by virtue of aboriginal title may not be alienated. Alienation would bring to an end the entitlement of the aboriginal people to occupy the land and would terminate their relationship with it.'
71 Endorois (n 4 above) para 291.
72 LJ Laplante & SA Spears 'Out of the conflict zone: The case for community consent processes in the extractive sector' (2008) 11 Yale Human Rights and Development Law Journal 17.         [ Links ]
73 Report of the International Expert Group Meeting on Extractive Industries, Indigenous Peoples' Rights and Corporate Social Responsibility: Manila Philippines Permanent Forum on Indigenous Issues, New York: United Nations E/C 19/2009/CRP, 4 May 2009.